STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

FAY A MOHR, Employee

US POSTAL SERVICE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08201880EC


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked about nine months as a casual worker at a distribution center for the employer, the federal postal service. Her last day of work was August 23, 2008 (week 34). She was discharged by the employer on August 25, 2008 (week 35).

The issue to be decided in this case is whether the employee's discharge was for misconduct connected with her employment.

The employee usually reported to work five days of the week. She was usually off Sunday and one other day of the week that varied. She was at times asked to work on a day she was not scheduled, particularly around a holiday. There were days that the employee requested in advance to not be scheduled.

The employee was scheduled to work April 24, 2008, but called in absent because she was babysitting her grand niece and the person that was to come to relieve her did not show up. There was no one else to watch her.

The employee obtained Brewer tickets in July for August 24, 2008 (week 35). She did not request off that day because she did not usually work on Sunday. On Friday, August 22, the stand-in supervisor told her she was to work on Sunday. The employee told the supervisor she had tickets for the game that she had purchased in July. The supervisor told the employee she had to find her own replacement. The employee had been told that she was to be working in automation, and only two of the five other casual workers were trained to perform that work. The employee contacted those two workers and they were not able to work on that Sunday, August 24. On Sunday morning, the employee called in sick. On Monday when the employee reported to work, she was discharged.

The employee, as a casual worker, was required to work on any day at any time. The employee knew she could be scheduled on Sunday. The employee did not request the day off in advance even though she could do so and had the tickets for nearly a month. The employee lied to the employer regarding why she was off work. As the commission stated in Krueger v. Voith Paper Products Appleton, Inc., UI Dec. Hearing No. 06401483AP (LIRC Sep. 15, 2006):

Trust is an essential component of the employment relationship. The commission and the courts have been consistent in holding that an employee's dishonesty in the course of this employment relationship supports a conclusion of misconduct. See, Gregory v. LIRC and MPS, Case No. 97-CV-001333 (Cir. Ct. Milw. Co. Dec. 4, 1997) (misconduct found where employee represented to employer on the date of absence that she would not be able to report to work due to a family emergency when in fact she engaged in election activities that day); Wise v. ABF Freight System, Inc., UI Hearing No. 03002541MD (LIRC Dec. 4, 2003); Lake v. Owen Ayres & Associates, Inc., UI Hearing No. 03002845MD (LIRC March 16, 2004).

The employee's actions in lying to the employer demonstrated an intentional and substantial disregard for standards of behavior the employer had a right to expect of the employee rising to the level of misconduct connected with her work for the employer.

The commission therefore finds that in week 35 of 2008 the employee was discharged from her employment and for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $2,706.00 for weeks 35 through 48 of 2008, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether the employee was improperly paid benefits due to employer and/or employee fault.

Wisconsin Statute § 108.04(13)(c) and (f), provide that, if an employer fails to provide correct and complete information requested by the department during a fact-finding investigation but later provides the requested information, charges to the employer's account for benefits paid prior to the end of the week in which the redetermination or appeal tribunal decision is issued regarding the matter remain as paid, unless the employer had good cause for the failure to provide the information. This rule is modified by federal law in cases such as this one where the employer is a federal agency. Public Law 94-566 provides that the federal employer's liability is limited to an amount that shall bear the same ratio to the total amount of compensation paid to the claimant as the amount of his federal wages in the base period bears to the total amount of base period wages. Thus, the federal agency is only charged that portion of erroneous payment for which it was originally charged in the pro-rated claim, here 32.593 percent.

In this case, the employer's agent did not provide information requested by the department regarding the actions that led to the employee's discharge. At the hearing, the employer offered no explanation for such failure to provide the requested information. Therefore, the employer's failure was not for good cause and constitutes employer fault. The employer's share of benefits paid to the employee prior to the end of week 41 of 2008 in the amount of $397.31 will remain charged to the employer's reserve account. There is no evidence of employee fault in this case. Pursuant to Wis. Stat. § 108.04(13)(c), no overpayment is created with respect to the $397.31 benefits paid prior to the end of week 41 of 2008. However, the employee must repay $821.69 in benefits paid prior to the end of week 41 of 2008 in the amount of $821.69.

The commission further finds that the employer failed, without good cause, to provide correct and complete information requested by the department during a fact-finding investigation, within the meaning of Wis. Stat. § 108.04(13)(c) and (f).

The commission further finds that benefits of $397.31 paid erroneously as a result of the employer's failure to provide information and without employee fault are not overpaid and shall remain charged to the employer's reserve account, pursuant to Wis. Stat. § 108.04(13)(c) and (f).

The commission further finds that benefits paid for weeks 35 through 40 of 2008, in the amount of $821.69, were erroneously paid to the employee and must be repaid because the overpayment was not the result of departmental error, within the meaning of Wis. Stat. § 108.22(8)(a) and (c), and cannot be charged to the employer under P.L. 94-566.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c) for benefits paid to the employee for weeks 41 through 48 of 2008 in the amount of $1,487.00, and after the week the appeal tribunal decision was issued, because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a departmental error as provided in Wis. Stat. § 108.22(8)(c), and was not the result of employer fault as provided in Wis. Stat. § 108.04(13)(c) and (f).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 35 of 2008, and until seven weeks elapse since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $2308.69 to the Unemployment Reserve Fund. Benefits erroneously paid to the employee in the amount of $397.31 remain charged to the employer

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed December 30, 2008
mohrfay . urr : 132 : 1 : MC 630 . 07 : BR 319 . 4

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ who presided at the hearing regarding her impressions of witness credibility and demeanor. The commission has adopted the ALJ's factual findings. There is no dispute that the employee lied to the employer. The commission disagrees with the ALJ's conclusion that the employee's conduct did not rise to the level of misconduct connected with her work for the employer.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another state or to the federal government. Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

 


cc: US Postal Service (Rothschild, Wisconsin)


Ed. Note: The decision is shown here as modified by a corrective amendment made on January 23, 2009.  The note to modification reflects that the commission declined to reconsider its decision in the matter. 

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